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Monthly Archives: January 2014

The best way to keep Medicare covered skilled maintenance care in place is to know your loved one’s rights and have the support of your loved one’s physician. Your loved one should not lose access to therapy because he or she will not improve or because he or she has reached the financial cap.

Here is the typical scenario:

Your love one is receiving skilled nursing care, home health services, or other certain types of therapy. Medicare Part B is paying for this care because it is provided by a skilled professional (a physical, occupational, or speech therapist) or in a qualified facility. You are told that the care will be discontinued because your loved one has “plateaued,” returned to “baseline,” is “maintenance only,” or requires only “custodial care.” You believe your loved one continues to need, and will continue to benefit from, the provided care.

Facilities and skilled care providers sometimes try to convince Medicare beneficiaries that Medicare coverage for their care may be denied on the grounds that they are not likely to improve, or are “stable,” or “chronic,” or require “maintenance services only.” These are not legitimate reasons for Medicare denials. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.

First, tell the facility that they’re wrong and ask them to reconsider the termination of benefits.

The 2013 settlement of Jimmo v. Sebelius, a federal class­action lawsuit, means that Medicare can no longer deny coverage for skilled nursing care, home health services, or other maintenance services because the patient or resident reaches a “plateau” and their condition is not improving. This allows people with Medicare who have chronic health problems and disabilities to get the skilled maintenance care they need, for as long as they need it, if they meet other coverage criteria.

As of December 6, 2013, the Centers for Medicare and Medicaid Services (CMS) Policy Manuals have been updated to reflect the settlement provisions. The manuals now make it clear that improvement is not necessary for coverage of physical, occupational, and/or speech therapy. What matters is the need for care to maintain or slow deterioration of the individual’s condition.

The intent of the Jimmo v. Sebelius settlement was to clarify Medicare’s longstanding policy that when services are required in order to provide care that is reasonable and necessary to prevent or slow further deterioration, coverage cannot be denied based on the absence of potential for improvement or restoration.

When talking with the facility, try to keep your loved one’s care in place. Medicare pays for care that has been prescribed. It does not pay for care that should have been prescribed. Once your loved one’s care is discontinued, it will be essentially impossible to reinstate the care without a Medicare appeal. The first step, therefore, is to keep the care in place. When services are terminated, your loved one’s long-term health may be endangered.

Second, contact your loved one’s doctor and ask him or her to order more care.

Therapists work under the orders of physicians. If the physician ordered three therapy sessions, the therapist will discharge your loved one after three therapy sessions. If you do not think your loved one is ready for the discharge, contact your physician and ask him or her to order more care.

Medicare will only pay for services if the services are medically reasonable and necessary. Unfortunately, for a long time, many believed that Medicare would only cover therapy if the patient would improve significantly in a short period of time. The use of this illegitimate standard, known as the “Improvement Standard”, caused patients with chronic conditions to lose access to reasonable and necessary medical care.

Ask your physician to write a letter explaining why your loved one’s services was, and still is, medically reasonable and necessary, including information about possible medical harm that might occur if your loved one does not receive the services. If possible, also include a letter supporting the claim from the treating therapist (even though this is sometime difficult because the therapist may work for the facility who is terminating services).

Because of the devastating effect of the improvement standard on the lives of people living with chronic conditions, the Jimmo v. Sebelius settlement stated that Medicare coverage does not require actual or even the possibility of improvement.

Third, show the facility the new materials published by the Center for Medicare and Medicaid Services (CMS) following the Jimmo v. Sebelius settlement.

CMS published the following, clarifying that maintenance therapy is covered by Medicare:

1. Jimmo v. Sebelius Settlement Agreement Fact Sheet.

2. CMS Transmittal 179 – Manual Updates to Clarify Skilled Nursing Facility (SNF), Inpatient Rehabilitation Facility (IRF), Home Health (HH), and Outpatient (OPT) Coverage Pursuant to Jimmo vs. Sebelius.

3. CMS Medicare Learning Network Notice on Manual Updates to Clarify Skilled Nursing Facility (SNF), Inpatient Rehabilitation Facility (IRF), Home Health (HH), and Outpatient (OPT) Coverage Pursuant to Jimmo vs. Sebelius.

If your loved one’s therapy is ending because your loved one’s therapist or facility believes your loved one will not improve or not improve quickly enough, but also thinks that continued care is necessary to maintain your loved one’s condition or slow determination, give the therapist or facility a copy of the CMS publications listed above. In addition, ask your loved one’s physician to give the therapist and/or facility copies of published research or clinical guidelines from professional sources supporting the medical benefit of maintenance therapy for your loved one’s medical condition. This information, in combination with the Jimmo settlement, should convince your loved one’s therapist to continue maintenance therapy and bill Medicare.

Fourth, know what to say when the therapist and/or facility claims services are denied because of the annual Medicare payment cap.

Your loved one’s therapist or facility might discharge your loved one from services because he or she reached the annual Medicare payment cap. If your loved one continues to need skilled maintenance care, you should ask your loved one’s therapist or facility to bill the ongoing care through the “Exceptions Process”. To support your loved one’s need for ongoing care and in case Medicare denies payment for the care; the therapist and/or the facility should obtain documentation from the medical literature or guidelines from professional sources supporting your loved one’s need for ongoing therapy. Your loved one’s physician may be able to help locate this literature.

If the steps above do not succeed and Medicare denies coverage, and you continue therapy, paid by you or another agency, the denial can be appealed through the Medicare Part B appeals process.

Fifth, if maintenance therapy is denied, consider appealing.

If your loved one’s Medicare Summary Notice (MSN), or the service provider, indicates that your loved one’s care has been denied coverage, look to see whether your or your loved one, or the provider, has been held financially responsible. If you or your loved one have been held financially responsible, you should certainly appeal.

If the therapy provider has been held financially responsible, and you want to get more therapy of a similar kind, you should also appeal.

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About This Blog

The Law Offices of Jeffrey A. Asher, PLLC produces this blog to provide general news and information about Estate Planning, Trusts & Estates, and Elder Law.